NO. 07-06-0451-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
AUGUST 8, 2007
______________________________
LARRY DARNELL MCKELLAR, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 52,950-E; HON. ABE LOPEZ, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Larry Darnell McKellar, Jr. appeals from an order deferring his adjudication for
possessing a controlled substance, namely cocaine. He contends that the trial court erred
in denying his motion to suppress. We overrule the issue and affirm the judgment.
Background
On January 4, 2006, around 1:30 a.m., Officer Michael Rolland and several other
police officers were conducting surveillance of an apartment complex in Amarillo. This
complex was a known site from which illegal drug transactions and arrests related thereto
had occurred in the recent past. During their 30-minute surveillance of the locale, the
officers observed seven or eight different people enter one particular apartment, stay
momentarily, and then leave. This activity likened to conduct undertaken in the drug trade,
according to Rolland.
Eventually, appellant and another man were seen leaving the same apartment and
walking toward a cab. The two wore coats and baggy clothing and headed toward a waiting
taxi. At that point, the officers decided to approach them. Simultaneously with their
encountering the two individuals, one of the officers recognized appellant’s companion; he
had been arrested at the same apartment complex the week before for possessing
cocaine. Given 1) his knowledge that appellant’s companion had a history of drug
involvement, 2) the activity occurring in the apartment, 3) the exodus of appellant and his
companion from the apartment under surveillance, 4) the hour of night, 5) the nature of the
clothes being worn by the two, and 6) the officers’ prior knowledge that those involved in
drug trafficking often carry weapons, appellant and his companion were patted down for
weapons. During the pat-down of appellant, Rolland smelled the odor of marijuana coming
from his clothes. At that point, appellant admitted that he had just smoked marijuana in
the apartment. The officer then conducted a full search of appellant and his companion
and discovered both cocaine and marijuana on their person.
Applicable Law
The standard of review for refusing to grant a motion to suppress is one of abused
discretion. Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.–Amarillo 1999, pet. ref’d). We
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refer the parties to Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) for an
explanation of it.
Next, police officers, like anyone else, are free to approach persons in a public place
and ask questions, so long as the persons are free to leave. Barnes v. State, 870 S.W.2d
74, 77 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d). Neither probable cause nor
reasonable suspicion is required to do so. However, to temporarily detain someone
against his will, an officer must have a reasonable suspicion supported by articulable facts
that criminal activity is afoot. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Additionally, the purpose of a pat-down search is to secure officer safety. O’Hara
v. State, 27 S.W.3d 548, 555 (Tex. Crim. App. 2000). So, officers may conduct a limited
search of a suspect’s outer clothing when they reasonably believe that the suspect is
armed and dangerous. Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000).
Moreover, the officer does not have to feel personally threatened or be absolutely certain
that a suspect is armed. Glazner v. State, 175 S.W.3d 262, 265 (Tex. Crim. App. 2005).
Finally, it is objectively reasonable for a policeman to believe that persons involved in the
drug business are armed and dangerous. Griffin v. State, 215 S.W.3d 403, 409 (Tex.
Crim. App. 2006); see also Wilson v. State, 132 S.W.3d 695, 698 (Tex. App.–Amarillo
2004, pet. ref’d) (holding that encountering someone who is reasonably suspected of
engaging in drug activity can justify a brief and minimally invasive frisk of his person).
Application of Law to Facts
Appellant contends that the officers lacked reasonable suspicion to initially detain and pat
him down for weapons. Thus, evidence regarding the officer’s perception of the marijuana
odor and eventual discovery of the cocaine allegedly had to be suppressed. We disagree.
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The surveillance undertaken by the officers, the criminal history surrounding the
locale, the officers’ perception of what was occurring at the apartment, their interpretation
of that activity given their experience, the involvement of appellant’s companion with drugs
(and the officers’ knowledge of that), and the time of night were circumstances upon which
an officer could reasonably infer that criminal activity (i.e. drug trafficking) was afoot.
Those same indicia coupled with the nature of the clothes being worn (i.e. clothes that
were sufficiently baggy to facilitate the hiding of weapons) also comprised evidence from
which an officer could reasonably infer that the detainees may be armed. Because the
record permits such inferences, we cannot say the trial court abused its discretion in
denying the motion to suppress. Accordingly, appellant’s issue is overruled, and the order
placing him on deferred adjudication is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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